A definitive anti-dumping duty is normally imposed retroactively to the date provisional payments (preliminary duties), if any, were imposed. In practice, in South Africa and in other jurisdictions, anti-dumping duties are imposed for five years from the date of the publication of the final notice, although this may have a retrospective effect that could extend the actual application of anti-dumping duties to as much as five years and nine months.

On 25 September 2007 the South African Supreme Court of Appeals (the SCA) held that the enabling legislation provided that anti-dumping duties could not be imposed for a period exceeding five years. Thus, the SCA found that if the anti-dumping duties were imposed with retrospective effect, the five years should be counted from the retrospective date of application of the duties and not from the date of publication of the notice imposing such duties. The SCA therefore found that the maximum duration of anti-dumping duties was five years and not five years plus the duration of the provisional payments. This ruling will have a profound effect on sunset reviews and existing anti-dumping duties in general and needs to be carefully considered.

This will have far-reaching effects on past, current and future sunset reviews and anti-dumping duties and could affect the very existence of some industries in South Africa. This Trade Brief considers the effect of the SCA’s ruling, but does not consider the merits of the finding.

Readers are encouraged to quote and reproduce this material for educational, non-profit purposes, provided the source is acknowledged. All views and opinions expressed remain solely those of the authors and do not purport to reflect the views of tralac.